¶ 23 We hold that Herskovits applies to lost chance claims where the ultimate harm is some serious injury short of death. [2] An "infarct" is "an area of coagulation necrosis in a tissue . If the legislature concludes that the doctrine should become a part of our state law, then it will be doing so as a duly informed representative body. ¶ 63 I do not share the majority's view that Herskovits has caused no serious harm and therefore it is unlikely that the majority's present opinion will. The x-rays and CT scan came back normal; they did not show any broken bones, fractures, dislocations, or intracranial injury. Around 11:30 a.m. Mrs. Mohr was transferred to the intermediate care unit, under the care of Dr. Brooks Watson. ¶ 9 On April 16, 2009, the Benton County Superior Court granted summary judgment for the defendants on the basis that the Mohrs did not show “but for” causation and. The Mohrs signed a form that included the following language: Patient care is under the control of the patient's attending physician who: is an independent provider and not an employee or agent of the hospital: May request other physicians to provide services during hospitalization (i.e. As noted, even a small percentage of chance can equal a substantial award. Hosp. Id. Whatever this means, it is not explained or supported by any analysis in the opinion. ¶ 3 Following those neurological tests, however, Mrs. Mohr reported and was observed to have neurological symptoms, including being wobbly on her feet and having severe pain after being administered pain medication. A "`possibility'" is not enough. 101 Wash.App. I CONCUR: GERRY L. ALEXANDER, Justice. [1] Palsgraf v. Long Island R.R. 99 Wash.2d at 619, 664 P.2d 474 (Dore, J., lead opinion), 635 (Pearson, J., plurality opinion). ¶ 86 We should affirm the trial court and answer the question certified to us in the negative. RCW 7.70.040. "Legal causation" depends on considerations of "`logic, common sense, justice, policy, and precedent.'" L.Rev. See, e.g., Jones v. Owings, 318 S.C. 72, 77, 456 S.E.2d 371 (1995) ("[l]egal responsibility in this approach is in reality assigned based on the mere possibility that a tortfeasor's negligence was a cause of the ultimate harm"); Pillsbury-Flood v. Portsmouth Hosp., 128 N.H. 299, 305, 512 A.2d 1126 (1986) (rejecting plaintiff's reliance on the "loss of a chance" doctrine expressed in Hicks v. United States, 368 F.2d 626 (4th Cir.1966); the Hicks rule that allows relaxation of the causation requirement where the defendant increased the risk of harm is ill advised; "[c]ausation is a matter of probability, not possibility"). However, he did not administer that drug because her physician sons and the neurosurgeons at Harborview requested that medication be withheld. Ctr., 166 Wash.2d 974, 988, 216 P.3d 374 (2009); Berger v. Sonneland, 144 Wash.2d 91, 110–11, 26 P.3d 257 (2001); Harris v. Robert C. Groth, M.D., Inc., 99 Wash.2d 438, 449, 663 P.2d 113 (1983). If nothing else, the added burdens to society presented by this case will be cumulative to any produced by Herskovits. Then, although the results were available at 3:27 p.m., Dr. Watson was not located or informed until 4:50 p.m. that the CT angiogram showed a dissected carotid artery. If the lost chance doctrine is to be accepted in this state, it should be through action of the legislature, which can consider the numerous public policy questions implicated by the doctrine that the majority never considers and, indeed, is not suitably in a position to consider. ¶ 36 A central tenet of tort liability for medical malpractice is that a plaintiff must prove a physician's acts or omissions caused a patient's actual physical or mental injury before liability will attach. Not only does the doctrine not require proof of “but for” causation, “but for” causation cannot be proved in any event. See King, supra, 28 U. Mem. Right v. Breen890 A.2d 1287 (Conn. 2006). 747, 779 n.254 (1985), the Maryland court described a hypothetical example involving 99 cancer patients, each with a 1/3 chance of survival (the example can also be applied to facts involving a chance of a better outcome, rather than survival), each of whom received negligent treatment, and all of whom died. at 349, 3 P.3d 211. CP at 119. at 94. Dr. Grantham noted that Mrs. Mohr was in “good condition, stable condition and improved condition.”. Plain words do not require construction. ¶ 87 Recovery on the basis of “a lost chance of a better outcome” from these targeted medical care providers is highly speculative and places an impossible burden on doctors and hospitals.7 Order of Certification at 1. This court, like others, has refused to apply the basic doctrine against members of any other profession. For this reason, and in service of underlying tort principles, this court and others have recognized some limited exceptions to the strict tort formula, including recognition of lost chance claims. Deterrence of negligence that does not cause actual harm is a meaningless proposition, and there can be no compensation of injury because the actual injury that occurs may be the result of the preexisting condition. Treating the loss of a chance as the cognizable injury “permits plaintiffs to recover for the loss of an opportunity for a better outcome, an interest that we agree should be compensable, while providing for the proper valuation of such an interest.” Lord v. Lovett, 146 N.H. 232, 236, 770 A.2d 1103 (2001). Expert witnesses testified that had Shellenbarger received nonnegligent testing and early diagnosis, which would have led to treatment, he would have “had a 20 percent chance that the disease's progress would have been slowed and, accordingly, he would have had a longer life expectancy.” Id. ¶ 56 The lost chance doctrine also gives rise to other questions. ¶ 84 A “proximate cause” of an injury is defined as a cause that, in a direct sequence, unbroken by any new, independent cause, produces the injury complained of and without which the injury would not have occurred. The majority holding rests on the fiction that the "injury" is actually the loss of a chance of a better outcome. 438, 448, 177 P.3d 1152 (2008) (citing McLaughlin v. Cooke, 112 Wash.2d 829, 837, 774 P.2d 1171 (1989)). at 612, 664 P.2d 474. Law Project, a federally-recognized 501(c)(3) non-profit. ¶ 32 KMC and the Mohrs dispute whether the Mohrs could and did reasonably believe that any of the codefendant physicians were employees or agents of KMC. Harbeson v. Parke-Davis, Inc., 98 Wash.2d 460, 475-76, 656 P.2d 483 (1983). Because the majority creates a speculative cause of action that is beyond the express legislative mandate of RCW 7.70.040, I dissent. Several states have rejected the doctrine. CR 56(c). Kramer v. Lewisville Mem'l Hosp., 858 S.W.2d 397, 406 (Tex.1993) (emphasis added). ¶ 58 In addition, even courts rejecting the doctrine have noted “ ‘appealing’ ” arguments exist in favor of the lost chance doctrine, e.g., id. Preferences - Preference cookies enable a … During the exam, Mrs. Mohr did not report or demonstrate any acute distress, swelling of the head, numbness, or neck pain. [3] Expert testimony is generally required to establish the standard of care and causation. And others have not yet reviewed the issue or have declined to reach the question. Over the course of a year, Leslie Herskovits repeatedly sought treatment for persistent chest pains and a cough, for which he was prescribed only cough medicine. Dr. Harris testified that had Mrs. Mohr received nonnegligent treatment at various points between August 31 and September 1, 2004, she would have had a 50 to 60 percent chance of a better outcome. Weymers v. Khera, 454 Mich. 639, 653, 563 N.W.2d 647 (1997) ("we reject scrapping causation (the bedrock of our tort law) in negligence cases where the injury alleged by the plaintiff is something less than death"). 3, 9 (2002). Rather, a plaintiff could prevail by introducing evidence that a physician's conduct increased the risk of harm and the harm in fact was sustained, with the jury then taking a permissible step from increased harm to causation and the conclusion that increased risk was a substantial factor in bringing about the resultant injury (death). Dr. Dawson noted that she was somnolent (drowsy), had normal speech, and had weakness on her left side. RCW 7.70.020. His diagnosing physician testified that the delay in diagnosis likely diminished Herskovits's chance of long-term survival from 39 percent to 25 percent. A plaintiff making such a claim must prove duty, breach, and that there was an injury in the form of a loss of a chance caused by the breach of duty. Nast v. Michels, 107 Wash.2d 300, 308, 730 P.2d 54 (1986). ¶ 12 The medical malpractice statute requires the same elements of proof as traditional tort elements of proof: duty, breach, injury, and proximate cause. 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